Dave W. Schade - Section Chief, Alaska Department of Natural Resources Mining, Land and Water / Water Resources Section This presents an overview of the concepts of traditional water rights vs the more recent concept of Reservations of Water with a review of west and east coast issues. In the current times, many systems have allocated 100 per cent of the water, yet there is a growing recognition that wildlife must have water to survive. In many states, including Alaska, water “rights” can be held which keep the water in the river/lake for wildlife and other purposes. However, that does not remove the conflicts which are already apparent, and at times, conflicts and priorities for the future.

1. “Traditional” Water Rights &
Reservations of Water
A River Management Perspective
April 15, 2014
Managing Rivers in Changing Climes:
Training Tomorrow’s River Professionals

2. David W. Schade MPA
Section Chief
Atwood Building
550 W. 7th Ave., Suite 1020
Anchorage, Alaska 99501
PHONE (907) 269-8645
FAX (907) 269-8904
SEAN PARNELL, GOVERNOR
DEPARTMENT OF NATURAL RESOURCES
DIVISION OF MINING, LAND & WATER
Water Resources Section

4. Facts: Water in Alaska
 586,412 Square Miles of Land Area
 43 % of the Alaska is wetlands
 Over 3 Million Lakes > 1 acre
 Up to 15 Million Miles of “potentially” navigable
waterways
 Prior Appropriation Doctrine
 Constitutional Public Trust Doctrine

5. Is it Navigable?
 Tidelands
 Shorelands
 Submerged lands

6. Kuskokwim Village of Kipnuk

7. Kuskokwim Delta – Subject to tidal
influence

8. The States hold title to submerged lands in their sovereign
capacity “in trust for the people of the state,
that they may enjoy the navigation of the
waters, carry on commerce over them, and have liberty of
fishing therein, freed from the obstruction or
interference of private parties.”
Illinois Central Railroad Company v. Illinois, 146 U.S. 387, 452 (1892).
Public Trust Doctrine

9. Public Trust Doctrine
 This United State Supreme Court has
established the public trust character of
submerged lands.
See Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 473 (1988)

10. Submerged Lands Act of 1953
 The federal government retains:
…the constitutional authority of the United
States of said lands and waters for the
purposes of navigation or flood control or
the production of power, ….

11. Non-Navigable Waterways
 Ownership of the land under the non-navigable
waterway is owned in some portion by the upland
landowner.
 State Public Trust Law ; may give some public use
rights to the waterway, despite the submerged lands
ownership (title) status

12. Floatplane Use does not make a lake
Navigable for Title Purposes

13. Upland Riparian Rights
 As Related to river management:
 Right to control access to river across private
property
 Right to have access to river
 Right in some states (eastern states) to use water in
reasonable quantities.
 Prior appropriation rights which are appurtenant to
land (western states)

14. Water Rights
 States Control of Water Rights
 Subject to: _________
 Water Allocation Principles
 Waters subject to Water Rights
 Reservations of Water
 Purposes of reservations
 Ways to establish reservations

15. States Control of Water Rights
are subject to:
 McCarran Amendment:
 Limited waiver of federal sovereign immunity for
purpose of water rights litigation
 This include Indian (Reservation) water rights

16. States Control of Water Rights
are subject to:
 Interstate Adjudications which can be done by
multi-state compacts which are then ratified by
Supreme Court decision or Congressional
Action

17. States Control of Water Rights
are subject to:
 US Treaties regarding International Waters –
coming into and out of the United States.
 Canada
 http://ijc.org/en_/Transboundary_Basins
 Mexico
 http://ibwc.state.gov/home.html

18. Water Allocation Principles:
Riparian or Common Law Principle: Owners of lands
on the banks of a river are entitled to the continual
flow or use of the stream.
Prior Appropriation Doctrine:
First in time is first in right.
Harmon Doctrine:
A right to appropriate all the waters of this stream
for purposes of irrigating its soil and making more
valuable it own territory.

19. Waters subject to Water Rights
 Surface Water
 Fresh
 Brackish
 Salt (?)
 SubsurfaceWater
 Fresh Water
 Confined aquifer
 Unconfined aquifer

20. Water Rights can include
the right to use Ice

21. Reservation of Water
 A reservation of water (sometimes called an in-
stream flow reservation) is a water right which
has the purpose of leaving a specific flow or
level of water reserved in a river, lake or water
bodies for the purpose described.

22. Types of Purpose:
 For the protection of fish and wildlife habitat,
migration and propagation.
 For the purposes of navigation and transportation.
 For park and recreational purposes.
 For sanitary or water quality purposes.

23. Ways to establish reservations
 By application for a water right of unappropriated or
unreserved water by state agency or private parties.
 By purchase or gift of private water rights to a state
agency.
 By statutory authority of a state agency established to
set reservation quantities.

24. Conclusions:
 Access and Water Law is often complicated and inter-related.
 Multiple jurisdictions are usually involved in a large water system.
 Understanding the law and principles of water allocation and use
in the jurisdictions in which the manager is operating is critical to
successful management.

25. Sources:
 http://legal-dictionary.thefreedictionary.com
 http://en.wikipedia.org/wiki/Prior-appropriation_water_rights
 http://en.wikipedia.org/wiki/Riparian_water_rights
 http://ijc.org/en_/Transboundary_Basins
 http://ibwc.state.gov/home.html
 Waters and Water Rights, Volumes 1 – 6 , Robert Emmet Clark, Editor in Chief
Allen Smith Company, Indianapolis, Indiana
 Water Law, William Goldfarb, Buttersworth Publishers, Stoneham, MA
 The Law of International Water Courses, Non-Navigational Uses, Stephen C. McCaffrey
Oxford University Press, Oxford, NY
 Shore and Sea Boundaries, Volumes 1-3 Aaron L. Shalowitz, US Dept of Commerce, Coast and Geodetic Survey
US Government Printing Office, Washington, DC.
 Legal Cases as cited and State Statutes as Published, including but not limited to:
PPL Montana v Montana 132 S.Ct. 1215 (2012).
Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 473 (1988)
Arizona v California, 373 U.S. 546, 587, 10 L. Ed 2nd 542, 570, 83 Sup. Ct 1468, 1491 (1963)
Illinois Central Railroad Company v. Illinois, 146 U.S. 387, 452 (1892).
The Daniel Bll, 77 U.S. (10 Wall) 557 19 L. Ed. 999 (1870)